[lg policy] South Africa: Ermelo High School Court Ruling a Double-edged Sword!

[Harold Schiffman]

Ermelo High School Court Ruling a Double-edged Sword!

 [1]The Ermelo High School judgement is certainly one the most
important in the history of the Constitutional Court. This well-argued
and pedagogically sound judgment investigated several critical
questions about the roles and functions of the education department
and governing bodies in terms of determining language policy and
consequently sets new parameters in terms of access, redress and
accountability. In the case of Ermelo High School the governing body
refused to adhere to an instruction by the Head of Department (HOD) of
the Mpumalanga Education Department to alter its language policy to
provide instruction in Afrikaans as well as English. The school was at
the time of this intervention an Afrikaans-only medium school and
learners regardless of their ethnic backgrounds were admitted provided
that they accept tuition through the medium of Afrikaans only.

The school’s governing body was therefore stripped of its powers by
the HOD and replaced by an interim governing body who then altered the
school’s language policy to admit a few learners who wanted to be
taught in English, but who could not find accommodation at any of the
other schools in the area where English is supposed to be the medium
of instruction. The previous governing body declared a dispute and
approached the courts for legal remedy, because according to them the
right to formulate language policy is confirmed by the South African
Schools Act. The Constitutional Court than had to interpret the
juristic boundaries of this right and in addition had to decide
whether the HOD could revoke this power if it is found that such a
policy restricted access to education and whether it as a result of
this, undermines the ethos of the Constitution.

With regard to the right of the HOD revoking the power of the
governing body, the court ruling is clear that such drastic
intervention is justifiable only if the governing body becomes totally
dysfunctional and consequently fails in the execution of its powers or
functions as described in the South African Schools Act.  The HOD may
not revoke the powers of a functioning school governing body just
because he or she does not agree with the language policy of the
school.  In the case of Ermelo High, the governing body was
functioning effectively.  This means that the HOD had exceeded its
powers in revoking the powers of the governing body.

The court therefore found that his actions and also the decisions of
the temporary governing body appointed by him were invalid. It does
not have the right to force schools at short notice to accept learners
if there is no sufficient accommodation available and it may not force
schools to amend their admittance and language policy without
following due process.

Furthermore, the order contained in the judgement makes it clear that
it remains the education department’s responsibility to do a thorough
accommodation needs assessment and continuously conduct in-depth
studies regarding migration patterns, possible overcrowding, shift in
language preference and the availability of resources and educators
who are capable of teaching effectively in the preferred language.

This is vital to prevent chaos at the beginning of the school year and
to ensure that learners and parents make informed choices about the
language of instruction and not because it is the popular choice. The
future of our learners is at stake here and issues relating to
accommodation must be managed professionally.

The same applies to the determination of language policy and the
choice of language of instruction as well. Schools cannot randomly
decide what the language of instruction should be without duly
considering how it would affect the interest of learners. Factors such
as the language competency of the learners, the educators, the parents
and the broader community, the availability of reading material and
language support mechanisms, the availability of educators who are
competent in the language of instruction, the effectiveness of
literacy advancement strategies and the constitutional right to
receive mother tongue education if practically possible, must be taken
into account. And where this right exists, it must be endorsed and not
be destroyed.

In view of the aforementioned the court re-affirmed the right of a
school governing body to formulate its own language policy by stating
the following: ‘Ordinarily, the representatives of parents of learners
and of the local community are better qualified to determine the
medium best suited to impart education and all the formative,
utilitarian and cultural goodness that come from it”. This right
cannot be tampered with and according to the judgement a lot more must
be done by education departments to ensure that primary and high
schools also make provision for education in especially the other
official African languages.

The Court ruled, however, that this right must not serve the education
interests of a specific school only, but rather that of the entire
community and that factors promoting or hindering it must be taken
into consideration when formulating a school’s language policy.  In
the ruling this is described as follows: “The governing body...is
entrusted with a public resource which must be managed not only in the
interests of those who happen to be learners and parents at the time
but also in the interests of the broader community in which the school
is located and in the light of the values of our Constitution”. It
therefore recommended that the Ermelo High School revises its language
policy in light of the decrease in student numbers in the past years,
the dire shortage of classrooms in the vicinity and the school’s lack
of space to accommodate parallel medium education, i.e. education
through the medium of Afrikaans and English.

This assumption that schools serve the broader school community has
far reaching implications for education in South Africa, because every
school has a particular constitutional duty and that is to uphold and
promote the values embodied in the Constitution.

It also implies that schools need to consider the economic, social,
cultural, political and spiritual wellbeing of the entire community in
ensuring that all its strategic and operational plans are focused on
unlocking the potential of all learners in the interest of the
wellbeing of the entire community. Due consideration must be given to
the role of mother tongue in this regard and the role of especially
parents in determining language policy. According to the judgement
they know what is best for their children.

However the education department must help them to make an informed
choice and provide them with the necessary support to implement
education and examinations in the mother tongue and in a language
other than the mother tongue if there is a need for it and where it is
practically possible.

This cannot be the responsibilities of former Model C schools alone,
that is why the Ermelo judgement can be interpreted as a juristic
affirmation that the responsibility to provide quality education and
access in this regard is a shared responsibility and that of every
other school in our country - also those which are dysfunctional!

Such schools, in the execution of their curricular and
extra-curricular functions must remain conscious of their broader
responsibility, because dysfunctional educational institutions impact
negatively on the entire community. The rampant crime, waves of
illiterate and unskilled workers, high levels of poverty and reliance
on government grants are evident of an educational system which is
failing us. In this respect the Ermelo judgement is indeed a victory
for all parents, learners and interest groups who are fed up with the
state of education in South Africa and certainly not a victory for the
National Education Department as it claims on its website. And what a
presumptous claim it is!

Because not only does the Ermelo ruling opens the door for civil
society to take legal action against such schools who fail to adhere
to time on task, teachers who are mostly absent, ineffective
curriculum delivery and bad management, but class action can also be
lodged by interest groups representing the educational interest of
parents and learners who are affected by poor education, against the
education department because it is not capable of calling such schools
to order and even against teacher unions who through the actions of
certain sections of their membership, undermine the provisioning of
quality education.

Class action suits have led to social reform in various countries. It
has helped to remedy inequities in education, health, and helped to
ensure due process. Hence, such legal action is very real and to my
mind the only way to prevent it, is for the education department and
unions to agree to declare education an essential service. Because in
searching for the right answers the Ermelo-judgement handed us a
double-edged sword.

- Christo van der Rheede is the CEO: Stigting vir Bemagtiging deur Afrikaans

http://www.ngopulse.org/article/ermelo-high-school-court-ruling-double-edged-sword
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